Why the snooping ex Google engineer is in trouble

Remember that 27 year old ex Google engineer, David Barksdale, who’s allegedly been hassling minors, not miners, with cyber-stalking and snooping? The great and mighty ‘Ogle fired him, but here’s exactly how he’s in trouble according to federal law in the US.

We’ve bolded bits and bobs. A big thank you to mystery lawyer friend and source.

Federal Law

The Electronic Communications Privacy Act (“ECPA”) or Title 18 § 2511 of the United States Criminal Code would likely apply in this case.

The law has a number of safe-harbor provisions but it is unlikely any of them apply here because the employee was obviously not acting in the “normal course of business,” he didn’t have any sort of “legitimate business purpose” for obtaining or disseminating the information he obtained, and he was not authorized either by the owner of the information, his employer or a law enforcement agency.

Again the relevant section makes it unlawful when:

“[Anyone who] intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . OR intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection . . . except where the interception occurs in the normal course of his employment or while engaged in any activity which is a necessary incident to the rendition of his service . . .

“Except as provided in paragraph (b) of this subsection or in subsection (5) [exceptions that do not apply in this case – e.g., law enforcement wiretapping], whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.“ [Cornell University Law School Electronic Library, accessed 9/15/2010]

Violations of ECPA generally result in criminal fines for first-time offenders although the law also allows injured parties to bring civil actions.

It’s not entirely clear they could sue Google unless Google had actual knowledge of the conduct or acted so negligently that they should have taken stronger precautions. Nevertheless, we could raise that as a red flag. The civil action provision is at Title 18 USC § 2520.

Additionally, the Children’s Online Privacy Protection Act (“COPPA”) or Title 18 § 1301 which acts almost identically but only applies to minors under the age of 13.

It contains stiffer penalties and a few other differences but it sounds like the teenagers at issue in this case were outside the age limit although I’m not certain of that. Regardless, we should raise it as a possible law that Google may have violated since we obviously don’t know the full extent of what this individual did.

Again, remedies can range from imprisonment up to five years, fines and/or civil penalties brought by children or their parents. [Children’s Online Privacy Protection Act at COPPA.org, accessed 9/15/2010]

California Law

The formal title of the law is “Use of electronic Communication to Instill Fear or to Harass” This might be a little harder to prove depending on the nature of the communications and whether they caused a “fear for safety” but there’s no reason not to throw it out there. Many other states have similar provisions. [California Penal Code Section 653.2, accessed 9/15/2010]

Specifically the California law states:

“(a) Every person who, with intent to place another person in reasonable fear for his or her safety, or the safety of the other person’s immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action, is guilty of a misdemeanor punishable by up to one year in the county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

“(b) For purposes of this section, the term “electronic communication device” includes, but is not limited to, telephones, cell phones, computers, Internet Web pages or sites, Internet phones, hybrid cellular/Internet/wireless devices, personal digital assistants (PDAs), video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term is defined in Section 2510(12) of Title 18 of the United States Code.”

Washington Law

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;(b) Anonymously or repeatedly whether or not conversation occurs; or(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.(2) Cyberstalking is a gross misdemeanor (fine at the discretion of the judge), except as provided in subsection (3) of this section.(3) Cyberstalking is a class C felony if either of the following applies (maximum of 5 years in prison and $10,000 fine):(a) The perpetrator has previously been convicted of the crime of harassment, as defined in RCW 9A.46.060, with the same victim or a member of the victim’s family or household or any person specifically named in a no-contact order or no-harassment order in this or any other state; or(b) The perpetrator engages in the behavior prohibited under subsection (1)(c) of this section by threatening to kill the person threatened or any other person.

(4) Any offense committed under this section may be deemed to have been committed either at the place from which the communication was made or at the place where the communication was received.

(5) For purposes of this section, “electronic communication” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. “Electronic communication” includes, but is not limited to, electronic mail, internet-based communications, pager service, and electronic text messaging.